In his 2021 revised state budget, Governor Gavin Newsom (D-Calif.) recently proposed yet another new tax on electronic cigarettes and vapor products. Taking aim at low-income consumers, this tax would raise taxes on adults who are attempting to quit smoking at a time that most adults can least afford it. The proposed budget also includes significant limits on tax credits and deductions for businesses and employers, resulting in billions of dollars in new and higher taxes beginning on July 1.

Newsom’s $33 million higher tax on vaping would disproportionately hit low-income Californians. Data from the Health Education Council reveals that Californians making less than $25,000 are already twice as likely to smoke compared to those Californians making over $50,000 a year. Levying additional taxes on smokers who are trying to quit takes aim at those adults experiencing the greatest financial uncertainty and struggles in the midst of Covid-19.

This new tax on vaping would not be the first. In 2016, Californians were among the first in the nation to institute a statewide excise tax on nicotine vapor products. 59 percent of voters voted for the ballot initiative that raised the state cigarette tax and changed the definition of a tobacco product subject to taxes to include e-cigarettes. Today, 21 states have instituted similar taxes ranging from a tax of 5 cents per milliliter of liquid in North Carolina, Kansas, and Louisiana to a 95 percent wholesale tax in Minnesota. Governor Newsom’s new budget, however, would make California’s tax the highest in the nation by adding an additional layer of taxation to the sale of these products.

Differences between the structure of vaping taxes across the country vary based on the point in the supply chain where taxes are imposed and the part of the product that is taxed. Wholesale value taxes are determined by the cost for retailers like vape shops to purchase a unit, while volume taxes are determined by the amount of liquid in a vaping device. California’s proposed budget would combine the two methods, adding both the current wholesale tax of 59% with a new $2 tax per 40 milligrams of nicotine per unit.

By creating a taxing pyramid in this way, e-cigarettes in California would actually be taxed at a higher rate than combustible cigarettes. Beginning in 2017, cigarettes were taxed at a rate of $2.87 per pack. Other tobacco products and e-cigarettes are subject to a variable equivalent tax which varies based on the price of cigarettes annually. A product like JUUL is currently taxed at a rate of 59% or $2.36 per JUUL pod. Under Newsom’s proposal, that tax would increase an additional $3.50, making the total tax on one JUUL pod product $5.86. For an adult smoker trying to transition from a Marlboro or American Spirits cigarette to a JUUL e-cigarette, the cost in taxes would be much higher to vape under the governor’s proposal.

Taxing e-cigarettes at a higher rate than cigarettes stands in stark contrast to the data suggesting that e-cigarettes are significantly less harmful than cigarettes for consumers. Both Public Health England and the Royal College of Physicians have concluded that e-cigarettes are at least 95% less harmful than cigarettes. As such, taxing them at a higher rate is reckless health policy.

For adult smokers seeking a less harmful nicotine alternative, e-cigarettes are demonstrably more effective as other quit tools. Research from the New England Journal of Medicine reveals that e-cigarettes are nearly twice as effective as the nicotine patch, lozenge, or gum at getting adult smokers to quit.

The negative consequences of increasing taxes on e-cigarettes have already been proven in the U.S. After Minnesota imposed a 95% wholesale tax on nicotine vapor products in 2013, the Bureau of Economic Research estimates that over 32,000 Minnesotans were discouraged from transitioning away from cigarettes as a result of the tax. Gavin Newsom’s new tax would clearly discourage Californians from quitting smoking.

For those adult vapers who refuse to go back to smoking, some may look to the black market for e-cigarettes. Newsom’s new vaping tax will push countless adults to seek out new products online, across state lines, or in unregulated markets that are not subject to state or federal regulatory scrutiny. The long history of tobacco smuggling shows that consumers regularly seek out less expensive options in these ways. Evidence from 2017 reveals that of all cigarettes smoked in California, nearly 45% were smuggled in from out of state to avoid high state excise taxes. Raising excise taxes on e-cigarettes will undoubtedly cause a similar reaction, reducing state revenues and increasing illicit trade in America’s biggest state.

Ironically, both the governor and state legislature acknowledge the risks of high excise taxes leading to black market sales. This year, Newsom embraced a reduction in the state taxes imposed on marijuana in California. The lead sponsor of a bill to reduce the excise tax on marijuana sales from 15 percent to 11 percent explained that the move would “reduce and shrink the unlicensed, illicit market” which is estimated to be 75 percent of the total state market. Two-thirds of the entire market is still black-market sales, despite the fact that marijuana has been legal for more than two years.

California lawmakers should reject efforts to raise taxes on nicotine e-cigarettes and vapor products. These regressive taxes target adult smokers trying to transition to less harmful products while pushing consumers to unregulated black markets. Decades of evidence suggests that consumers will almost always seek out less expensive options, depriving the state of even more tax revenue, while harming the legal businesses in the state who simply want to provide smokers with better options.

Today, Americans for Tax Reform released a compilation of the top remaining Democratic candidates for president who have come out recently against vaping. Some have gone so far as to call for complete and total bans.

Joe Biden:*"I choose science over fiction. And so if the science has demonstrated is doing great damage then I don't care what it does to a small business person who's selling this stuff. If it is damaging lungs, if it's causing the kind of damage that is said and that studies not been fully done yet. If it turns out that it is that I would eliminate it."

Bernie Sanders: *"I think we shut down the industry. If they are causing addition, and if, and the evidence is that people are getting sick as a result. They're inhaling a lot of bad stuff, right?"

In an exchange with the New York Times editorial board in December, Senator Sanders made similar comments.

Editorial board member: "Do you believe that flavored e-cigarettes should be banned? How would you tackle the vaping-related health crisis?

Bernie Sanders:*"Yeah I do. I think that they already seem to be causing serious health problems."

Pete Buttigieg:*"This means taking action on these flavored e-cigarette products that are clearly targeted towards children and making sure that we have a much higher bar for them demonstrating that they're not causing harm because we're seeing all these horrifying cases of people coming to harm because they use this product."

Elizabeth Warren goes so far as to agree that she has some of the "harshest proposals" in regards to vaping, as she signaled during this exchange at a town hall:

Voter: “Of all the 2020 candidates running for the Democratic nomination, you have come out with some of the harshest proposals to regulate the vapor industry.”

Compared to most 2020 Democrats, Senator Elizabeth Warren has weighed in numerous times on the question on vaping. In November, Warren submitted questions to then-nominee for the FDA Stephen Hahn to get to the bottom of "the Trump administration’s reversal on its plan to remove certain flavored e-cigarettes and nicotine pods from the market and asking what steps the FDA will take to combat youth e-cigarette use and the spate of vaping-related illnesses plaguing the nation."

The specific question submitted by Warren on November 20, 2019 to now-Commissioner Hahn for the record read as follows:

"In September 2019, the Administration announced that it would 'outline a plan…for removing flavored e-cigarettes and nicotine pods from the market,' including mint and menthol. Earlier this month, however, the Administration reversed course. Reportedly facing 'pressure from his political advisers and lobbyists,' the President 'has resisted moving forward with any action on vaping.' This failure to act is unacceptable. If confirmed, will you push to implement the robust ban on e-cigarette flavors announced in September?"

A compilation of some of these comments can be watched here:

Amy Klobuchar: “The president’s decision not to move forward on action to ban flavored e-cigarettes is yet another example of how his Administration prioritizes corporate interests over people.”

Andrew Yang: When asked about an expected Trump administration ban on flavored vaping products, he responded: "So, I agree that we're headed in the right direction if we're taking steps. It is a bit overdue."

Tom Steyer was the largest individual donor to California's Proposition 56, representing over one-third of all money spent in support of a statewide measure to impose a massive new wholesale tax on e-cigarettes and the nicotine vapor industry in California. Not only did Steyer spend $11.3 million of his own money as the co-chair of the Prop. 56 campaign, but he appeared in television ads asking voters to implement the statewide 68% vaping tax as well. In fact, he championed his involvement in Prop. 56 in his first presidential campaign ad of the 2020 season and has a December ad dedicated to his involvement in the 2016 campaign, where he oddly neglects to mention the new tax on vaping created with his ballot initiative.

Mike Bloomberg: has invested $160 million in a national campaign to ban all flavored nicotine vapor products.

*These comments were made after the Centers for Disease Control and Prevention concluded that illicit THC and marijuana products were the culprit behind "damage" being done to consumers.

In Iowa this week, Democrat Pete Buttigieg signaled that if elected, he would place tighter regulations on the nicotine vapor industry, stating that “the burden has to be” on the vapor industry to prove that e-cigarettes and nicotine vapor products are safe, during a town hall in Winterset, Iowa on Monday. He went on to mischaracterize the value and intended purpose of products that are specifically flavored in nature and to blame nicotine products for recent vaping-related illnesses.

Here’s the key exchange:

Voter: “So, in 2019, more than 27% of high school students used an e-cigarette. How would you address this epidemic as it pertains to youth and young people?”

Buttigieg: “So, what we are seeing is e-cigarettes being marketed and sold to young people despite companies telling us otherwise. The way this was marketed and sold to the country is that it can be used for harm reduction. It can get people off smoking combustion cigarettes and into something that might be less dangerous than cigarettes. But that doesn't make them safe in their own right, and that doesn't answer why you would target them for people who aren't smokers at all. And I believe the burden has to be on these companies to demonstrate that they are not causing harm rather than on regulators to demonstrate that they are.

This means taking action on these flavored e-cigarette products that are clearly targeted towards children and making sure that we have a much higher bar for them demonstrating that they're not causing harm because we're seeing all these horrifying cases of people coming to harm because they use this product.

And it is why, whether its specific to e-cigarettes or whether its more generally when it comes to the way that we regulate food and drug and other products in this country that we have regulators who actually believe in protecting consumers rather than being beholden to those whose profits are at stake."

Not only does Buttigieg signal that he would impose rules more onerous than those recently implemented by the Trump administration, but he refused to acknowledge the harm reduction potential of a vast majority of vapor products that adults use to quit smoking which are in fact flavored.

Without evidence or context he asserted that e-cigarettes have caused harm to consumers. In fact, Mayor Pete seemed to purposely confuse the harm being inflicted on consumers by black market and illicit THC marijuana products, which have been identified by the Centers for Disease Control and Prevention as the culprit behind the recent vaping illnesses. Those THC products are generally already illegal in all instances, as opposed to legal nicotine vaping products available in convenience stores, vape shops, and other retail outlets.

Buttigieg’s comments come less than a week after Elizabeth Warren signaled that she would crack down on legal nicotine vaping if elected and on the heels of Joe Biden also suggesting that he would “eliminate” vaping if elected.

“I don't care what it does to a small business person who's selling this stuff. If it is damaging lungs, if it's causing the kind of damage that is said and that studies not been fully done yet. If it turns out that it is that I would eliminate it,” Biden said.

Today, the FDA released final guidance regarding the sale and availability of nicotine vapor products on the market across the United States. Beginning soon, the agency will force the removal of "closed system" nicotine vapor products that contain disposable "pods" and "cartridges" in over 150,000 retail locations. Exempt from immediate prohibition are products largely sold by thousands of vape shops, where adults can purchase a variety of flavored products and devices to customize their vaping experience.

ATR's Director of Strategic Initiatives, Paul Blair, had this to say of the new FDA guidance on vaping:

"This fight should have never been necessary. The overreaction by nanny-state activists and the misrepresentation of the truth about the cause of teen vaping from some within the administration in September led the President into months of wasted time on an issue best addressed through sensible regulation and legislation on Capitol Hill. More than 10,000 small mom and pop businesses had to spend Thanksgiving and Christmas without any sort of clue about whether they'd have to let their employees go during the Holidays.

Fortunately, these small businesses have been spared, for now. The President heard many vapers' concerns and implemented a compromise position after an unprecedented amount of consideration was given to both anti-vaping activists and sensible small business advocates.

The unfortunate reality, however, is that removing so many disposable and closed system vapor products from the market is that the very places where these reduced risk products were once available is where smokers can still buy any cigarette that they want. Smokers deserve choices, should they choose to quit. America's 34 million smokers will have fewer options, which may lead to fewer ever trying to quit with products that are at least 95% less harmful.

President Trump does deserve great praise for acknowledging the importance and health advantage of a smoker transitioning to an e-cigarette, an acknowledgement that never came from President Obama, who once smoked cigarettes. I hope that the current President understands that the pending May deadlines for submitting applications for every other business not impacted by this decision still present a real threat of prohibition given how complex and expensive the application process is. The FDA must immediately issue clarifying guidance on how small firms that sell flavored vapor products are supposed to make it through a regulatory process that has only ever worked for actual tobacco products.

Vapor products are the most successful quit-smoking tool to have ever existed. It would be a shame if they largely ceased to exist at the end of the historically successful Trump administration because some of his trusted advisors were taking direction from the likes of Mike Bloomberg."

Currently, services like Veratad and Age Checker verify a consumer's age online with third party databases to ensure that they are consistent with the information the government has on age to purchase laws. Some of these services further require you to upload a photo ID already, making a new federally mandated point of delivery age verification both unnecessary and additionally costly. This legislation will result in adult consumers being forced to pay several dollars more each time they have e-cigarettes shipped to their homes, a needless government action that will result in fewer smokers transitioning to e-cigarettes, which are 95% less harmful than cigarettes.

Teens who are not of the legal age to vape (those under the age of 18-21, depending on the state) are currently prohibited from purchasing nicotine vapor products online, a policy aggressively enforced by the Food and Drug Administration. The FDA both monitors and enforces against online businesses that do not check age at the time of purchase or when you access the sales portion of a website that sells e-cigarettes. There is not an online loophole that allows underage consumers to purchase vapor products online.

FDA data conclusively points to social sources like friends or family being the way that teens get access to e-cigarettes, not online sales. This bill does not address the stated concerns of proponents of the legislation.

The Senate should reject this legislation because it will raise costs on adult consumers and may result in fewer people choosing to use reduced risk alternatives to cigarettes.

The McLaughlin firm was a principle polling firm for Donald Trump in 2016 and remains a trusted ally for the administration. The poll was commissioned by the Vapor Technology Association. According to the pollsters:

Four in five (83%) vapor consumers are likely to decide their vote based solely on a candidate’s position on nicotine vapor products and issues. Half (50%) are “very” likely to be single issue voters.

This is almost identical to the polling conducted in part by Americans for Tax Reform in October of 2016, which can be found here.

McLaughlin further concluded:

Nearly all (96%) of these vapor consumers are likely to vote in the 2020 general elections. Four in five (85%) are “definitely” voting. Among the 4% who are less likely to vote, the majority (59%) would be likely to come out to vote if lawmakers banned the sale and use nicotine vapor products.

These vapor consumers favor the Republican candidate on the generic ballot (46% to 24%), but 30% are undecided and up for grabs in the battleground states.

Supporting a ban on flavors in all nicotine vapor products is a political liability. Nearly all (96%) vapor consumers are LESS likely to vote for a candidate who supports a flavor ban. The intensity (92% much less likely) shows the passion they share on this issue.

McLaughlin also concluded that there “is political upside for candidates who oppose a ban on flavors in all nicotine vapor products. Virtually nine in ten (88%) vapor consumers are MORE likely to vote for a candidate who opposes a flavor ban. Eight in ten (79%) are ‘much’ MORE likely to support such a candidate.”

On the flip side, if HHS Secretary Alex Azar and Acting FDA Commissioner successfully convince the White House to implement a flavor ban, McLaughlin concluded that “vapor consumers in Trump’s base would likely turn on him over this single issue.”

Although vapor consumers currently approve of the job Donald Trump is currently doing as President (51-44), 74% said that they would be less likely to vote for him, with 65% saying they would be “much less” likely to vote for Trump. Among key base and supporters, it’s significant:

Approve Trump: 65% less likely;

Republicans: 65% less likely;

Conservatives: 62% less likely;

Independent Men: 83% less likely;

Independent Women: 79% less likely.

Prior to e-cigarettes, 84% of respondents smoked a pack of cigarettes a day or more, with 94% reporting no longer smoking cigarettes due to nicotine vapor products. More than half smoked for at least 20 years before quitting.

“This new poll further confirms what Americans for Tax Reform has long argued, that millions of adults who use flavored nicotine e-cigarettes to quit smoking will vote on that issue and that issue alone. Banning flavors would be a significant political liability in every single one of the states that Donald Trump needs to win next year, especially in states like Michigan, Florida, Pennsylvania, and Wisconsin which have at least two million adult vapers alone,” said Paul Blair of Americans for Tax Reform.

“As McLaughlin suggests, 74% of vapers in these states voting against the President because of this issue would cost him big. McLaughlin is a trusted pollster for the President so it is our hope that this puts a stop to the FDA and HHS's misguided plans to hand Democrats a win in 2020 by banning life-saving flavored e-cigarettes. Prohibition is not a winning proposition. Instead of demonizing people who are improving their own health by transitioning to products that are 95% less harmful, the federal government should focus its attention on the true cause of recent illnesses and death: black market THC and marijuana,” said Blair.

The poll of adult vapor voters was commissioned by the Vapor Technology Association and conducted between October 17 and 22 in Arizona, Colorado, Florida, Georgia, Iowa, Maine, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Pennsylvania, Texas, Virginia, and Wisconsin. The full crosstabs can be found here.

Today, Americans for Tax Reform President Grover Norquist and a coalition of center-right organizations from across the country called on President Donald Trump to preserve access to electronic cigarettes and vapor products that millions of American adults are using to quit smoking or reduce their dependence on tobacco products in the United States. In recent weeks, there have been calls to ban flavored vapor products, including a push by New York billionaire activist Mike Bloomberg, who has invested more than $160 million to push a ban. In the midst of historic-low smoking rates among both teenagers and adults, a number of organizations are urging the President to implement reasonable regulations instead of outright prohibition.

Essential to the success of e-cigarettes as a tool for reducing adult use of cigarettes is the availability of flavors. Instead of confusing the issue of illness and deaths associated with illicit marijuana use and the popularity of e-cigarettes as a quit-smoking tool, conservative organizations nationally are urging President Trump to protect more than 10,000 small businesses that sell e-cigarettes to adults and implement sensible regulations instead.

We urge you to preserve access to life-saving alternatives to cigarettes for the millions of adults who rely on electronic cigarettes and vapor products to quit smoking in the United States. Of particular importance is the preservation of flavored products, which are not only the preferred product for adult smokers but essential to the success of vaping as an alternative to cigarette use long-term.

Your administration has rightly derided “regulatory dark matter,” or agency-generated guidance because it imposes “back door” regulations without going through a formal rule-making process. The flavored vapor product guidance under consideration by the FDA is among the most striking and nontransparent violations of your commitment to limit dark regulations since you took office. Unchallenged, the FDA will destroy thousands of small businesses without Congressional oversight and without sufficient input from the public.

Over 10,000 small mom-and-pop vape shops comprise an overwhelming percentage of this industry and represent the fastest-growing retail segment of the past ten years, a recent Labor Department analysis shows. A Wells Fargo analysis estimates that the commercial e-cigarette and vapor product industry is expected to be a $10 billion industry by next year, a growth trajectory that has significantly reduced combustible cigarette sales across the country.

A vast majority of these businesses employ fewer than ten employees, making the shops that sell e-cigarettes to adults trying to quit smoking increasingly reliant on sensible federal regulations that don’t impose millions of dollars in costs through a FDA regulatory process designed purposefully by Congressional Democrats and the world’s largest tobacco companies to end in failure.

Billionaires like former New York City Mayor Mike Bloomberg have long attempted to curtail individual rights and consumer freedom in the United States. He has already committed nearly $1 billion to anti-tobacco efforts globally, in seeking to influence organizations like the World Health Organization and fund research that demonizes adult smokers and adult vapers. On September 10, he announced a $160 million push to ban flavored e-cigarettes in America. Given your administration’s historic accomplishments and deregulatory agenda, it would be a mistake to allow HHS and the FDA to take marching orders from activists like Mike Bloomberg.

Adults like flavors. That’s precisely why everything from vodka to ice cream comes in a variety of flavors. When it comes to vaping, this holds true. Prior to the rise of JUU Lin 2018, more than 80% of adult vapers used fruit, dessert, and sweet flavors to stay away from cigarettes. Tobacco and menthol e-cigarette flavors ranked as the fifth and sixth most popular flavor before one company dominated the traditional convenience store market.

Eliminating all but one or two of these options for adults would destroy thousands of small businesses, force many adult vapers to return to smoking, and force some to seek out products on the black market.

Both the FDA and Centers for Disease Control and Prevention now acknowledge that the recent deaths and respiratory and lung illnesses associated with vaping have largely been caused by the illicit marijuana and THC market. Instead of targeting legal nicotine products that have existed for a decade, the administration’s focus should be on cracking down on California drug dealers that are poisoning consumers with dangerous, unregulated, and counterfeit products sourced from places like China and Mexico.

Your administration can keep e-cigarettes out of the hands of teenagers without jeopardizing the great accomplishments that have been made in public health through the availability of vapor products for adults. We urge you to immediately halt the FDA’s planned actions that will limit choices for millions of American adults who rely on flavored vaping products to quit smoking. More than 100,000 jobs and the lives of 34 million adult smokers are on the line.

Sincerely,

Grover Norquist

President, Americans for Tax Reform

Phil Kerpen

President, American Commitment

Daniel Schneider

Executive Director, American Conservative Union

Steve Posiask

President, American Consumer Institute

Ryan Ellis

President, Center for a Free Economy

Thomas Schatz

President, Citizens Against Government Waste

Jeff Stier

Senior Fellow, Consumer Choice Center

Michelle Minton

Senior Fellow, Competitive Enterprise Institute

Katie McAuliffe

Executive Director, Digital Liberty

Jason Pye

Vice President of Legislative Affairs, FreedomWorks

Julie Gunlock

Director of Center for Progress and Innovation, Independent Women’s Forum

Over the past week, President Donald Trump has been considering an outright ban on nearly every electronic cigarette and vapor product on the market. Not only would the implementation of a flavor ban be disastrous for public health, but it may cost Trump the election in 2020.

"Internal polling conducted by Americans for Tax Reform in October 2016, just five months after the Obama administration announced their own timeline for a de facto e-cigarette ban, found that 4 out of 5 adult vapers' vote-moving issue was where a politician stood on the issue of taxing, regulating, and banning e-cigarettes."

What might that mean in 2020? If you look at the 12 states which will likely determine the outcome of the election, based on the margin of victory or loss by Donald Trump in 2016 and changing political currents, there are at least 4.15 million adults in battleground states that use electronic cigarettes, according to FDA-funded survey data. Those states include Florida, Pennsylvania, Ohio, Michigan, North Carolina, Wisconsin, Georgia, Minnesota, New Hampshire, Maine, Arizona, and Nevada.

If voter turnout holds flat in 2020 over 2016, there are roughly 2.55 million vaper voters scattered across these 12 key battleground states. The data on the number of adult vapers may underestimate the true figure because adult use of these products has increased in the last two years. To ignore that these adults have used e-cigarettes to quit smoking cigarettes, something that they're proud of and strongly believe in would be among the biggest political miscalculations of the presidential campaign in 2020. Not only do these people rightly attribute the use of flavored nicotine products to saving their lives, but their family members, friends, and neighbors have likely heard their stories as well.

If Trump wants to depress voter turnout or turn voters away from his winning message in states where the margin of victory could be just a few thousand votes, banning flavored nicotine e-cigarettes would be a great way to go about it.

“Youth who use e-cigarettes are more likely to start smoking combustible cigarettes”;

The youth “epidemic can be attributed to the appeal of flavored vapor and alternative nicotine products”;

“Prohibiting the retail sale of flavored vapor and alternative nicotine products will result in less product available on the market… which should ultimately result in decreased youth tobacco use.”

The ban applies to all flavored non-combustible nicotine products, including those with mint and menthol flavoring, and makes an absurd jump to over-criminalize the mere possession of vapor products. In an unpublished draft of the rules, “a person who possesses four or more flavored vapor products, or flavored alternative nicotine products is rebuttably presumed to possess said items with the intent to sell,” a misdemeanor offense and punishable with up to 6 months in prison in the state of Michigan.

Criminalizing the possession of as few as four e-cigarettes flies in the face of voters’ growing sentiments about personal choices when it comes to consumer products, namely marijuana. In 2018, Michigan became the 10th state in the country to legalize the recreational use of marijuana when 56% of voters approved the Michigan Regulation and Taxation of Marihuana Act. The voter initiative legalized possession of up to 2.5 ounces of cannabis and allows homeowners to grow up to 12 plants of marijuana in their homes. Dispensaries are expected to open soon.

The pending ban of nicotine-containing e-cigarettes and new legalization of THC/marijuana, which can be consumed through e-cigarettes is puzzling. Adults in Michigan in 2020, under Gov. Whitmer’s agenda, will be able to smoke to get high but not vape nicotine to reduce their dependence on combustible cigarettes.

Beyond consumer product liberalization paradoxes, this move also stands to harm public health. Millions of adults are using flavored e-cigarettes that contain nicotine to reduce or eliminate their dependence on cigarettes, the use of which results in the premature death of more than 400,000 American adults annually. The growing global scientific consensus is that compared to combustible cigarettes, e-cigarettes are at least 95% less harmful than cigarettes, a fact even acknowledged by the American Food and Drug Administration. Removing these products from store shelves will leave hundreds of thousands of current and former smokers few options other than to continue or return to smoking cigarettes, products untouched by the governor’s planned ban.

It should be noted that the basis of the governor’s ban is without merit on grounds of a “gateway effect” for vaping as well. Contrary to her claims, e-cigarettes have not proven to be a gateway to smoking, evident by the fact that despite youth experimentation with the products, smoking rates among teens has fallen in recent years. In fact, new data from the 2018 National Survey on Drug Use and Health found that only 2.7% of adolescents aged 12 to 17 reported smoking cigarettes in 2018, down from 3.2% in 2017. Even more compelling is the fact that youth initiation of cigarette use declined from 2.4% in 2017 to 2.3% in 2018. Overall, there has been a 79% decline in cigarette smoking since NSDUH first measured use in 2002.

Data from the 2018 Monitoring the Future survey indicated a similar decline in use of cigarettes, down from 5.4% in 2017 to 4.6% in 2018 among 8th, 10th, and 12th graders (which included 18-year-olds who can legally smoke). This same survey indicated that past-month use of marijuana for seniors in high school stood at 22.2%, compared to 7.6% of seniors who had reported smoking cigarettes in the past month.

Going even further into the available data to include the use of all traditional tobacco products (cigarettes, smokeless tobacco, cigars, and pipe tobacco), just 4.2% of adolescents aged 12 to 17 reported use of these products in 2018, down from 4.9% in 2017 according to the NSDUH.

(Click for larger image)

There is no basis for the governor’s claim that adolescent experimentation with e-cigarettes is resulting in higher smoking rates among teens. As such, limiting the options that adults have in the consumer marketplace is clearly an attempt to generate national headlines in the name of a fake “public health emergency" without regard for the law, context for the use of other products, or public health consequences.

Jacob Sullum at Reason notes, “Whitmer's e-cigarette ban rests on a breathtakingly broad reading of her authority to make emergency rules in the name of ‘public health,’ however she defines it.”

Even if the Republican-led legislature in Michigan fails to intervene, it is not likely that businesses or consumers will sit idly by as prohibition comes to pass.

The Vapor Technology Association responded to the announcement by saying that it “will evaluate every option at its disposal, including litigation, to prevent implementation of this ban. The Governor’s unprecedented misstep will force a mass exodus of products from the market and will result in what the Food & Drug Administration (FDA) itself has described as “a public health crisis” as a result.” VTA estimates that more than 1,200 jobs are and $51 million in state and local tax revenue is on the line with this decision.

The American Vaping Association responded by saying, "These businesses and their customers will not go down without a fight. We look forward to supporting the lawsuits that now appear necessary to protect the right of adults to access these harm reduction products."

Reports suggest that once finalized, the rule will provide retailers 30 days to clear out their inventory of flavored vapor products and will remain in effect for six months before subsequent regulatory and legislative actions are required.

Publicly available records from the Federal Elections Commission reveal that Ned Sharpless has contributed thousands of dollars to Democrat candidates for federal office, including Barack Obama in both 2008 and 2012. A review of FEC filings show:

Between March and October of 2008, Sharpless contributed to three Democrat candidates including a $250 contribution to Barack Obama and $2,000 in contributions to Kay Hagan, of North Carolina. Hagan beat Republican incumbent U.S. Senator Elizabeth Dole that year.

In 2010, Sharpless contributed to Cal Cunningham, a North Carolina Democratic candidate for the U.S. Senate, the year of Senator Richard Burr’s 55-43 victory over Elaine Marshall, who beat Cunningham in a runoff.

“As the head of the National Cancer Institute, Ned Sharpless knows firsthand the potential benefit of transitioning millions of adult smokers away from cigarettes with proven-effective and less harmful e-cigarettes. However long he’s in charge, I'm hopeful he’ll have less of an interest in scaring suburban moms and more of an interest in reducing the cancer and disease associated with cigarette use by preserving the ability of adults to access a wide range of vapor products. He can begin by fulfilling the perhaps forgotten promise of Scott Gottlieb to issue clear guidance on how to bring new reduced risk products to market.”